It's a choice that's seldom -- if ever -- subjected to the rigorous fact-finding scrutiny of the criminal justice system. That's what makes the Alameda County district attorney's decision to file murder charges against a former Bay Area Rapid Transit officer who shot an unarmed young man to death New Year's Day so extraordinary.
More than 100 Californians are killed by law enforcement officers each year, but apparently no California cop has been criminally charged with murder for an on-duty shooting in the last 50 years. Most scholars and historians weighing in on this over the last week suspect that none ever has been.
The Oakland case is unusual in a number of ways.
First, the killing was captured by a number of witnesses on cellphone cameras, and videos of the incident are on the Internet for all to see. Now, it's true that such images are a window on events but -- as experience has shown -- not necessarily a complete one. Still, these image are shocking.
The then-BART officer, 27-year-old Johannes Mehserle, and a colleague had taken 22-year-old Oscar J. Grant III into custody after a fight in a train station. According to reports by Oakland police investigators filed as part of the murder charge, Grant was unarmed and on his stomach, struggling slightly. Mehserle's partner had his knee on the back of Grant's neck. Both Grant's arms were bent behind him -- investigators surmise in preparation for handcuffing -- when Mehserle drew his sidearm and shot him in the back.
All of this was captured on video. Mehserle immediately resigned from the BART police force rather than give the required account of his actions to the agency's internal affairs investigators.
That's curious, because such "compelled" statements can't be used against him in criminal or civil proceedings. In fact, internal affairs investigators aren't even allowed to share such statements with prosecutors for investigative purposes.
Alameda County Dist. Atty. Tom Orloff said this week that the defendant's silence contributed to his decision to file charges. Exculpatory information often emerges during internal affairs probes and can influence prosecutors.
"When you basically have a situation of an unlawful, intentional killing of one individual by another, and that's all you know -- and that's really all we know in this case -- then that's a murder," Orloff said. The officer's refusal to speak about his state of mind "made it more difficult in the sense that his statement could or could not have given me some insight into his thought process. ... The videos are very powerful on what act was committed."
Since Grant's killing, there have been violent protests and more than 100 arrests in Oakland, where attention has focused on the fact that Grant was black and Mehserle is white. Some commentators have alleged that Mehserle was charged to defuse those racial tensions.
Whether Mehserle had a propensity to use excessive force or a history of being accused of or disciplined for racist acts are other things we don't know. Passage of the California Peace Officer's Bill of Rights and the state Supreme Court's utterly mistaken 2006 decision in the case of Copley Press vs. Supreme Court have sealed police officers' records against media or public scrutiny.
One of those who thinks that veil of secrecy ought to be lifted is Los Angeles Police Chief William J. Bratton, who said he was "frustrated" by the so-called bill of rights and the Copley decision.
"The public has no access to [such information]," he said. "The media have no access to it. That's crazy, absolutely crazy."
So, all we are left with is the criminal justice process. People have a right to demand that it proceed with as much transparency as the current deficient situation allows.
Nobody, however, has a right to demand that it proceed to a predetermined result, whether that's Mehserle's conviction or acquittal.
Johnnie Cochran would approve.